Copyright Laws and the 1830 Book of Mormon Nathaniel Hinckley Wadsworth n the summer of 189, Joseph Smith completed his translation of the I Book of Mormon. One year removed from the harrowing loss of the initial 116 pages of the translation in the summer of 188, he was deter- mined to not lose this work again, in any sense. On June 11, 189, Joseph deposited, with the clerk of the Northern District Court of New York, a single printed page that resembled what would become the title page of the 180 Book of Mormon, in order to secure a copyright in the work. The court clerk, Richard Ray Lansing, generated the official executed copyright form, which he retained; Lansing’s record book was eventually deposited in the Library of Congress. In December 004, this official form and the accompanying title page were photographed by the Library of Congress (see pages 97–99 in this issue), prompting a reevaluation of the law and the events surrounding the original copyright of the Book of Mormon. A copyright—the legal property right in a creative work—would ensure that Joseph alone had the authority to publish the Book of Mor- mon. Obtaining the copyright was seen as a validation of the reality of his work. In October 189, Joseph wrote from Pennsylvania to Oliver Cowdery concerning the Book of Mormon: “There begins to be a great call for our books in this country. The minds of the people are very much excited when they find that there is a copyright obtained and that there is really a book about to be produced.” Joseph may have also seen the copyright as a help in recouping the considerable costs of producing the book. Another publisher could have cut into sales, but a copyright would prevent such competition. This finan- cial factor is evidenced by the Prophet’s sending Hiram Page and Oliver Cowdery to Canada in 180 to license the copyright in that country. Page BYU Studies 45, no. 3 (6) 77 78 v BYU Studies Nathaniel Hinckley Wadsworth As a student, Nathaniel Wads- worth worked for several years on the Joseph Smith Papers project and per- formed legal and historical research for other projects related to LDS Church history. This paper began as directed research credit and continued as a class project for John W. Welch at the J. Reuben Clark Law School. Wadsworth’s devoted interest in Church history began upon his return from service as a missionary when his father gave him the Autobiography of Parley P. Pratt. “Since reading that book,” Wadsworth says, “I have had an insatiable desire to learn more about the people and events of the Restoration. I am glad to be able to make even a minor contribution to the study of Joseph Smith and his work.” later said that Joseph saw this as an opportunity to raise a substantial amount of money, although the endeavor was ultimately unsuccessful. Whatever the specific reasons for Joseph’s seeking a copyright in the Book of Mormon, he genuinely wanted to acquire that legal protection. Therefore, he made diligent efforts to do what the law required in order to secure that right. Most historians have treated Joseph’s June 11 filing as the sole event necessary to vest in him all legal rights to the Book of Mormon. Joseph’s efforts to secure the copyright seem to have paid off in early 18 0, when he successfully defended his rights against Abner Cole, an opportunistic edi- tor who pirated selections from the Book of Mormon and printed them in his newspaper. It is logical to assume that Joseph was successful because he had filed for the copyright several months prior to the altercation with Cole. But his efforts to secure a federal copyright are probably not why Joseph succeeded against Cole. Indeed, the young prophet probably did not meet all five of the federal law’s requirements for a valid copyright. Joseph’s legal victory over Cole was more likely premised on common law rights that Joseph held in the unpublished manuscript simply by virtue of having created the work. Copyright Laws and the 1830 Book of Mormon V 79 Copyright Laws in Nineteenth-Century America Before turning to Joseph Smith’s clash with Abner Cole, one needs a general understanding of the copyright laws in the United States in the early nineteenth century. That understanding requires one to know the difference between statutory law and common law. Statutory law is defined as “the body of law derived from statutes rather than from constitutions or judicial decisions.” It consists of all the written laws created by the legislative bodies of governments. Common law is “the body of law derived from judicial decisions, rather than from statutes or constitutions.”0 Historically, common law was considered inarticulate until put into words by a judge. Where statutory law did not answer the question in a particular case, a judge might turn to common law and would decide the issue “in accordance with morality and cus- tom,” and later judges would regard this decision as precedent.11 In 189, both statutory law and common law provided copyright protections to an author’s work: statutory law applied to both published and unpublished works, and common law applied only to unpublished works. As with most areas of American law, the antecedents of these copy- right laws can be traced back to England. The first copyright act, passed in England in 1709, was the Statute of Anne. Prior to the Statute of Anne, the Stationers’ Company, a guild of printers, held perpetual copyrights in the works it published.12 The new act reversed that and vested the copy- right in the authors of the works. But rather than preserve the perpetual nature of copyrights, the Statute of Anne granted authors the sole right to print and sell their works, subject to certain conditions, for a period of only fourteen years.13 Many authors and publishers took the position that this statute was merely an appendage to a common law right that gave authors lifetime ownership in their creative works. In 1774, however, the House of Lords ruled against this argument in the case Donaldson v. Beckett, declaring that no common law right of copyright existed.14 The statute alone granted authors rights in their works. A similar statutory scheme was later adopted in America. In 178, the Continental Congress, lacking the authority to make a federal copyright law, recommended that each state establish its own copyright law. Following the pattern set forth in the Statute of Anne, the Congress recommended that authors be given rights to their works for at least fourteen years.15 Most states complied with the request of Congress, including New York in 1786.16 Trouble soon arose, however, because copy- right protection in one state could not guarantee an author’s protection in another state. Moreover, inconsistencies from one state to another 0 v BYU Studies demonstrated that the states could not “separately make effectual provision for [copyrights].”17 Solving this problem was important enough that copy- right law was covered in the United States Constitution, ratified in 1789. Under the Constitution, the states ceded to the federal government the power “to promote the Progress of Science and useful Arts, by secur- ing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”18 Under this authority, Congress enacted the first federal copyright statute in 1790.19 The Copyright Act of 1790 granted to “the author and authors of any map, chart, book or books . the sole right and liberty of printing, reprinting, publishing and vending such map, chart, book or books, for the . term of fourteen years from the time of recording the title thereof in the [district court] clerk’s office.”0 The copyright was renewable for an additional fourteen years, provided the author met certain conditions. The disparate state copyright statutes were preempted as the federal government exercised full authority to create statutory copyright law.21 The protections afforded by this federal statute went further than some state protections.22 Under the new law, after an author or propri- etor (a person who had acquired the rights from the author) had secured the copyright to a book, any other person who printed or published the work without consent of the author or proprietor, or who knowingly sold unauthorized copies, was required to forfeit all such copies to the author or proprietor.23 The offender was also required to “pay the sum of fifty cents for every sheet which shall be found in his or their possession,” with one half of the payment going to the copyright holder and the other to the fed- eral government.24 If an author failed to do all that was necessary to secure a copyright in a book, he or she could still print and sell it, but the statute would not preclude others from likewise printing and selling the book. Some lawyers argued that this federal statute functioned concurrently with the common law in protecting an author’s rights in his or her creative works. But, as had occurred earlier in England, the United States Supreme Court eventually rejected that argument in 184 in the case Wheaton v. Peters, holding that no common law copyright existed in published works.25 But at the same time the Supreme Court accepted the commonly held position that common law copyright protection existed for as yet unpublished works: That an author, at common law, has a property in his manuscript, and may obtain redress against any one who deprives him of it, or by improperly obtaining a copy endeavors to realise a profit by its publica- tion, cannot be doubted; but this is a very different right from that which Copyright Laws and the 1830 Book of Mormon V 81 asserts a perpetual and exclusive property in the future publication of the work, after the author shall have published it to the world.26 Thus, in affirming an author’s property interest in his unpublished manuscript, the Wheaton decision established a principle of copyright law under the common law, according to which Joseph Smith could have successfully asserted copyright protection regarding the Book of Mormon before, but not after, the book’s publication.